REPROHEALTHLAW Updates – May 2017

May 26, 2017

 SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS

Argentina:  Juzgado Nacional en lo Criminal de Instrucción 16, Secretaría 111 de la Capital Federal, causa 28.580/2015, “M.N.N.”  (28 de Junio de 2016).  National Criminal Court held a woman and the doctors who prescribed her abortion medications, not guilty of any crime because the woman’s health was at risk. The woman was pregnant because her partner raped her.  English summarySpanish summary.   Download decision in Spanish.

Colombia:  Constitutional Court blocked sterilization of a disabled girl who was too young to consent.   English summarySpanish summary with link to decision.

India:   Indu Devi v the State of Bihar [2017] No(s.) 14327, decided May 9, 2017 (Supreme Court of India). Destitute HIV+ woman, pregnant from rape, refused abortion past legal limit of 20 weeks, but State held responsible for delay that prevented legal abortion.  Summary by H. Kofman forthcoming on this blog  Decision download 

Uruguay:  Woman refused legal abortion after former partner intervenes.   Summary in EnglishSpanish summary with link to decision. Safe Abortion Campaign report.

CALLS

Gender Justice Uncovered Awards: Nominations for best and worst court decisions.  Many striking cases and decisions summarized, e.g., Argentina, Colombia and Uruguay decisions mentioned above.    Vote before May 31, 2017

Call for Submissions: “Gender Violence and International Human Rights Law” for the 2018 Human Rights Essay Award, organized by Academy on Human Rights and Humanitarian Law, Washington College of Law, American University, Washington DC.   Submission Information and form.

Open Call for Submissions, McGill Journal of Law and Health, peer-reviewed. Details and Editorial Guidelines.

EDUCATIONAL OPPORTUNITIES

Graduate study in Health Law now available at the Centre for Health Law, Policy and Ethics, University of Ottawa, currently accepting LLM and PhD applications on a rolling basis for the 2017-2018 academic year.    Brochure online.

RESOURCES

“Abortion by telemedicine: an equitable option for Irish women,” by Wendy V. Norman and Bernard M. Dickens,  BMJ May 16, 2017; 357 Article online.

[abortion, Canada] “A Constitutional Future for Abortion Rights in Canada,” by Joanna Erdman, Alberta Law Review 54.3(2017):727-752   Article online.

[abortion, Europe]  “Legal and Political Discourses on Women’s Right to Abortion,” by Christina Zampas,  chapter 1 in:  A Fragmented Landscape: Abortion Governance and Protest Logics in Europe, ed.  Silvia De Zordo, Joanna Mishtal, and Lorena Anton   (New York: Berghahn, 2016)  Details from Publisher

[abortion law] “Regulating Abortion: Dissensus and the Politics of Rights” by Siobhan Mullally, introduction to special issue of Social & Legal Studies: An International Journal, 2016, Vol.25(6) . Introduction online.

[abortion law]  “Book Review: Francisca Pou Giménez on Rebecca J. Cook, Joanna Erdman and Bernard M. Dickens’s Abortion Law in Transnational Perspective: Cases and Controversies”, on I-CONnect, Blog of the International Journal of Constitutional Law and Constitution Making, May 17, 2017  Book review online.   (Penn Press discount code: PH70).    Spanish edition, FCE/CIDE, 2016

[abortion law pedagogy] “The Social Life of Abortion Law: On Personal and Political Pedagogy,” by Nicky Priaulx, Medical Law Review 25.1(2017):73-98.  Download abstract and PDF.

[abortion travel]  “The Law of Stigma, Travel, and the Abortion-Free Island,” Columbia Journal of Gender & Law 33.1(2016): 29-37.  PDF online.

[conscience]  “Physicians, Not Conscripts — Conscientious Objection in Health Care,” by Ronit Y. Stahl and Ezekiel J. Emanuel, New England J Medicine 376 (April 6, 2017):  1380-85.  Full text for institutional subscribers

[Ireland]  The Citizens’ Assembly – Draft Bill [recommendations for Irish abortion law reform] by Lawyers for Choice, Human Rights in Ireland, April 25, 2017  Draft Bill online.

[Nigeria]  “Accountability for Maternal Healthcare Services in Nigeria,” by Onyema Afulukwe, International Journal of Gynecology and Obstetrics 137.2(May 2017) 220-226.  Abstract.  PDF temporarily online for 12 months   Submitted text (typescript) online.

Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity, edited by Máiréad Enright, Julie McCandless and Aoife O’Donoghue (Oxford: Hart, 2017)   re-imagines, re-writes and comments on 26 court decisions from feminist perspectives.  Our commentsTable of Contents and details

[South Africa]  Pregnancy Law in South Africa: Between Reproductive Autonomy and Foetal Interests, by Camilla Pickles (South Africa: Juta, 2017), (based on thesis from University of Pretoria,  Thesis abstract   Book details from publisher

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog.  View or subscribe.

REPORTS

“The Law, Trials and Imprisonment  for Abortion in [individual countries].”  International Campaign for Safe Abortion.  MexicoArgentina,  Kenya .

JOBS

Associate Professor/Professor and Assistant Director, Center for Human Rights, Faculty of Law, University of Pretoria.  Position details.

Links to other employers in the field of Reproductive and Sexual Health Law are online here

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


Kenya: High Court halts HIV+ data collection, upholding dignity & privacy

May 26, 2017

Many thanks to Professor Ebenezer Durojaye of the Dullah Omar Institute for Constitutional Law, Governance and Human Rights at the University of the Western Cape, for abstracting this significant judgment for REPROHEALTHLAW subscribers.  Prof. Durojaye can be reached at  ebenezerdurojaye19 at gmail.com

Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] eKLR Petition 250 of 2015. (High Court at Nairobi)  Decision online.

This case centres on a directive issued by Kenyan President Kenyatta requesting that the names of school-going HIV positive children, their guardians and HIV-positive pregnant women and their addresses be compiled for the purpose of assisting the government to respond and provide appropriate service and support to the children living with HIV/AIDS. The said information should include the number of children infected with HIV, number of guardians or caregivers infected with HIV, number of expectant mothers that are HIV positive and number of breastfeeding mothers who are HIV positive.

This directive was challenged by KELIN and others claiming that it violated the rights and privacy of people living with HIV as guaranteed in the Constitution and the “HIV Prevention and Control Act.” The Court agreed with this submission and found that the disclosure of school-going children’s HIV status will undermine the rights to dignity and privacy of children. While the intention of the government may be laudable, however, the implication of the directive will no doubt infringe on the rights of people living with HIV in general and HIV-positive children in particular. The International Guidelines on HIV provide that data and information about the HIV status of a person should be collected without linking the information to an individual.   This decision is significant in the sense that it not only protects the privacy and dignity of HIV positive persons (especially HIV positive children) but also addresses the implication of this for HIV related stigma and discrimination. It is a known fact that people living with HIV experience human rights abuses arising from stigma and discrimination. It is hoped that this decision will send a strong message to governments across Africa to desist from encroaching on right to privacy of HIV-positive persons, particularly HIV-positive children.

The full decision is online here.

Case Commentary by JURIST

Related Resources:

Kenyan constitutional  right to privacy was also upheld in this 2015 decision:
AIDS Law Project v. Attorney General and 3 Others [2015] eKLR, Petition No. 97 of 2010 (High Court of Kenya at Nairobi), declared not only that the criminal provision in Kenya’s HIV/AIDS Act was overbroad, vague, and therefore unconstitutional, but also that enforced disclosure of HIV status to sexual contacts violated constitutional right to privacy.   Decision online,  summarized and discussed in Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts   pp. 171-176).  CRR press release.

Legal Grounds III:  Reproductive and Sexual Rights in Sub-Saharan African Courts (Pretoria: PULP, 2017 ) [Discusses 54 court decisions 2008-2017, including 12 cases on “HIV”] Free PDF

Jacinta Nyachae and Paul Ogendi, “Litigating the right to health in Kenya: an analysis of selected cases,”  in: Litigating the Right to Health in Africa: Challenges and Prospects, ed. Ebenezer Durojaye (London, Routledge, 2015) Book information.

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The REPROHEALTHLAW Blog is compiled by the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, Canada,  reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.
TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription


Nigeria: Accountability for maternal healthcare services

May 26, 2017

Many thanks to to Onyema Afulukwe-Eruchalu for writing this useful new article in the Ethical and Legal Issues section of the International Journal of Gynecology and Obstetrics.  She currently serves as Senior Legal Adviser for Africa at the Center for Reproductive Rights.

Afulukwe-Eruchalu, O. (2017), Accountability for maternal healthcare services in Nigeria. International Journal of Gynecology and Obstetrics 137.2 (May 2017); 137: 220–226.  DOI:10.1002/ijgo.12108   PDF online for 12 months.     Submitted text online.

High maternal mortality ratios (MMRs) serve as objective indicators of the poor condition of women’s health in any country and point to violations of human rights that are entrenched in national, regional, and global laws. For more than a decade, Nigeria has consistently been one of the top five listed countries with the highest MMRs in the world; in 2015, its MMR was estimated at 814 deaths per 100 000 live births, accounting for 19% of maternal deaths worldwide and approximately 58 000 deaths each year. Accountability for preventable maternal deaths and injuries is essential to both achieve and sustain a reduction in Nigeria’s high levels of maternal mortality. The present article addresses key human rights strategies for securing accountability, and identifies opportunities for healthcare providers to have leadership roles in the fulfillment of legal and ethical obligations to preserve women’s lives.
Free access to PDF online for 12 months
Submitted text (typescript) online.

See also:

Afulukwe-Eruchalu O. “Accountability for Non-Fulfilment of Human
Rights Obligations: A Key Strategy for Reducing Maternal Mortality
and Morbidity in Sub-Saharan Africa,” in Strengthening the protection of sexual and reproductive health and rights in the African region through human rights, ed. Charles Ngwena and Ebenezer Durojaye (Pretoria: Pretoria University Law Press (PULP); 2014) 119–151.  Free PDF book.
Trends in Maternal Mortality: 1990 to 2015. (Geneva: World Health Organization, United Nations Children’s Fund, United Nations Population Fund, World Bank Group, United Nations Population Division, 2015). Free PDF report.

Ethical and Legal Issues in Reproductive and Sexual Health – Articles from previous issues of the International Journal of Gynecology and Obstetrics are all online here.
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The REPROHEALTHLAW Blog is compiled by the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, Canada,  reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.
TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

 

 


Northern Ireland: Advocating Abortion Rights – Local and Global Tensions

April 25, 2017
Congratulations to Dr. Catherine O’Rourke of the Transitional Justice Institute at Ulster University, Northern Ireland.  Her useful journal article was recently published in a special issue of Social & Legal Studies,  guest-edited by Siobhan Mullally, on “Regulating Abortion: Dissensus and the Politics of Rights”:

Catherine O’Rourke “Advocating Abortion Rights in Northern Ireland: Local and Global Tensions,” Social and Legal Studies 25 (6). pp. 716-740.
Published PDF       Submitted text (accepted after minor revisions)

Abstract:       It is frequently claimed that the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is more significant for the cultural, rather than legal, work that it does in reframing locally contested gender issues as the subject of international human rights. While this argument is well developed in respect of violence against women, CEDAW’s cultural traction is less clear in respect of women’s right to access safe and legal abortion. This article examines the request made jointly by Alliance for Choice, the Family Planning Association Northern Ireland and the Northern Ireland Women’s European Platform to the CEDAW Committee to request an inquiry under the CEDAW Optional Protocol into access to abortion in the jurisdiction. The study found that the CEDAW framework was useful in underpinning alliances between diverse pro-choice organizations but less effective in securing the support of ‘mainstream’ human rights organizations in the jurisdiction. The article argues that the local cultural possibilities of CEDAW must be understood as embedded within both the broader structural gendered limitations of international human rights law and persistent regressive gendered sub-themes within mainstream human rights advocacy.
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For full text of this article, see:
“Regulating Abortion: Dissensus and the Politics of Rights”:  special issue of Social & Legal Studies, ed. Siobhan Mullally and Clare Murray:  Table of Contents
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Canada: “Autonomy, Equality, and Access to Sexual and Reproductive Health Care”

April 25, 2017

 

Congratulations and thanks to Prof. Erin Nelson of the University of Alberta’s Faculty of Law, whose article on social disparities of sexual and reproductive health care access in Canada has just been published:

Erin Nelson,  “Autonomy, Equality and Access to Sexual and Reproductive Health Care.”  Alberta Law Review (2017) 54:3 (2017): 707-26  Full text PDF.

The focus of this article is on access to sexual and reproductive health care, an essential aspect of reproductive justice. Although the scope of the problem is unknown, there are reasons to question whether Canadian women are able to access reproductive and sexual health services such as contraception and abortion. The author discusses these issues, and the significance of additional barriers that Canada’s First Nations, Métis, and Inuit women face in obtaining access to reproductive health care services. The author argues that providing meaningful access to sexual and reproductive health care is essential to ensuring women’s reproductive autonomy, and must be part of any political endeavour aimed at ensuring equal status for women.

The full text of this article  is online here in PDF.

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REPROHEALTHLAW Updates — March 2017

March 29, 2017

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS:
Caso I.V. v. Bolivia,   Sentencia de 30  Noviembre de 2016 (Excepciones Preliminares, Fondo, Reparaciones y Costas) Corte InterAmericana de Derechos Humanos [Inter-American Court of Human Rights]Decision 2016 in SpanishCase summary by Christina Zampas.  Amicus Curiae brief by Ciara O’Connell, Diana Guarnizo-Peralta and Cesar Rodriguez-Garavito in English.   Report on the Merits (2014) in English

Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] Petition 250 of 2015 (High Court of Kenya Constitutional and Human Rights Division).  [Official collection of Kenyans’ HIV data halted, as “unconstitutional”]  Decision onlineComment from Jurist Blog.

[Kenya] Martin C.   v. Republic, Criminal Appeal No. 32 of 2015, April 26, 2016 (High Court of Kenya, at Malindi).  [sexual relationship between adult man of 23 and girl of 14 is not “defilement” because she sought it.  Prisoner released.]  Decision online.  {Summary by Godfrey Kangaude forthcoming on this blog.}

[South Africa] Dwenga and Others v Surgeon-General of the South African Military Health Services and Others [2014] ZAGPPHC 727, Case No. 40844/2013, the High Court at North Gauteng. [against discrimination toward HIV+ employees in the military.]  Summary for Legal Grounds III.    Decision online.

[South Africa] Gary Shane Allpass v Mooikloof Estates (Pty) Ltd. [2011], Case No. JS178/09, a Labour Court of South Africa.  [wrongful dismissal of HIV-positive employee].  Summary for Legal Grounds III.   Decision online.

CALLS:

Calls for Papers, Special Issue on “Gender and the Rise of the Global Right,” in Signs: Journal of Women in Culture and Society. Submit by September 15, 2017,  Detailed call for papers.

Callls for Applications, “Health Rights Litigation Intensive” June 26-30, 2017, one-week summer course at the O’Neill Institute for National and Global Health Law, at Georgetown University Law Center, Washington DC, USA.  Apply by April 10, 2017.  HR Litigation course info.

Gender Justice Uncovered awards 2017, is collecting the best and worst court decisions from 2016.  Nominate your best or worst case here in English.  Nomina tu caso ya  en Espanol.

RESOURCES

Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens, Pennsylvania Studies in Human Rights Series, University of Pennsylvania Press, 2014. 
New 20% discount code: PH70.  Now in paperback (March 2017), 
Table of Contents.    Introduction online at SSRN.  Table of Cases online (Spanish and English, with links to court decisions.   ¡Ahora en español! El aborto en el derecho transnacional (CIDE/FCE, 2016)  folleto con sumario 

Brazilian Supreme Court abortion ruling – I-CONnect blog symposium of scholarly comments from five perspectives:  Rebecca J. Cook and Bernard M. Dickens, Chao-ju Chen; Grégor Puppinck; Debora Diniz and Christine Ricardo; and Rachel Rebouché. 5 perspectives on Brazilian abortion ruling.

Brazilian dossier on “Gênero, Raça e Pobreza: a abordagem de múltiplas identidades pelo Direito” [Gender, Race and Poverty: The Multiple Identities Approach to Law] Revista FGV Direito 22(2015), ed. Marta Machado, online here.  includes articles in Portuguese or English with abstracts in both languages, about: domestic violence laws, CEDAW, maternity in prison, and research in prisons (by D. Diniz), and abortion, i.e.:
—[South Africa, abortion] “Claiming and Defending Abortion Rights in South Africa” / Reivindicando e defendendo o direito ao aborto na África do Sul” by Cathi Albertyn, Revista FGV Direito 22 (2015): 429-454   English article with Portuguese abstract.

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog.  View or subscribe.

JOBS

Links to other employers in the field of Reproductive and Sexual Health Law are online here

______________
Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


South African rulings uphold rights of HIV+ employees

March 29, 2017

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), now an LL.D. candidate with the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for composing and/or editing summaries of 54 recent African court decisions for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, published in 2017 by Pretoria University Law Press (PULP).  All three volumes in the series are freely available in print or electronic form.

Two of the court decisions summarized in Legal Grounds III clearly upheld the rights of HIV-positive persons against discrimination, including  unjust dismissal, and exclusion from certain job opportunities.

Gary Shane Allpass v Mooikloof Estates (Pty) Ltd. [2011], Case No. JS178/09, a Labour Court of South Africa upheld the rights to equality and non-discrimination of HIV-positive persons in the workplace.  The Court ruled that a horse-riding instructor’s dismissal from employment for HIV-positivity was automatically unfair in terms of Section 187(1)(f) of the Labour Relations Act, 66 of 1995, because the reason for dismissal was his  HIV status, and was not justifiable on any other ground.   Summary for Legal Grounds III.   Decision online.

Dwenga and Others v Surgeon-General of the South African Military Health Services and Others [2014] ZAGPPHC 727, Case No. 40844/2013, the High Court at North Gauteng  reinforced an earlier ruling against discrimination toward HIV+ individuals employed by the military.  The South African National Defence Force had violated its own policies, and was unable to provide any evidence to suggest that the requisite health required for the positions sought by the Applicants could not be achieved by a person infected with HIV.  Summary for Legal Grounds III.    Decision online.

As Godfrey Kangaude emphasized regarding the Dwenga case: “Discriminatory attitudes and practices against persons with HIV are still prevalent in our societies, despite the progress that many countries have made in terms of putting in place public policies to curb these forms of discrimination. Having legislation in place or even a court decision is sometimes not enough incentive, even for public institutions such as the army, to end discriminatory practices. The Court commented that public institutions should be exemplary in complying with constitutional norms and standards, such as respect and protection of the rights of persons living with HIV. (Legal Grounds III, page 188)

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Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts (Pretoria University Law Press (PULP), 2017) covers decisions from 2008 to 2016.   228 pages, 54 case summaries, onlineFlyer with Table of Contents.

Legal Grounds I and Legal Grounds II (Center for Reproductive Rights, 2005 and 2010) are online here.
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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.     TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.